The Closing of the Net  "original and valuable"  Times Higher Education

If you care about the Internet, you should care about this. The leaked draft of the new Telecoms Regulation is the Telecoms Package ‘MkII’. But unlike its predecessor, it contains legal twists that create  some  mega- horrors.  Whoever wins this argument in the Commission will determine who runs the networks and how for the next decade.

  EU Commissioner for the Digital Agenda, Neelie Kroes, has taken a lashing from rival DG Competition over her proposed shake-up of the telecoms market . The attack on Mrs Kroes draft policy suggess an internal fight over the aims and scope of the Regulation, which was leaked last month by European Digital Rights.  But an investigation of  Commission documents suggests that she has not yet firmed up her plans and is exposed to rival demands from other Commissioners . The possibility of splits in the Commission over the Regulation came to light in

  the Financial Times (FT) earlier this week. The FT uncovered an attack on Neelie Kroes’ proposals by DG Competition, which is alleged to have criticised Mrs Kroes for  ‘lacking ambition’. The attack appears to been made in some written feedback to Mrs Kroes and her team  from DG comp. The feedback was given as part of  the inter-stitial consultation processes whereby  the Commission finalises its draft legislation. This is the Regulation laying down measures to complete the European single market for electronic communications and to achieve for a Connected Continent.

  According to the FT, DG Comp considers that  Mrs Kroes draft text is ‘suboptimal’ and should include more far reaching changes. In particular, DG Comp is said to be demanding a pan-European telecoms regulator. That is, a single entity which would be responsible for regulating telecoms in all 28 Member States. It would erode the role of the national regulators, such as Ofcom, or even disband them completely.

  That latter demand would until now have put fear in the hearts of many, and it is politically highly controversial. In 2009, a Commission proposal for regulatory oversight by the Commission was rejected in the European Parliament negotiations over the Telecoms Package (Del Castillo report). The 2009 proposals  did not go anywhere near as far as this new draft Telecoms Regulation (see EU midsummer horror: leaked draft of new Telecoms Regulation).

  The FT article has   helpfully illuminated an internal discussion among European Commissioners and their respective Directorates. Other sources suggest that Mrs Kroes has been uncertain as to  how  radical the changes should be.

The language of ‘ambition’ stems from a Commissioners’ meeting in June when Mrs Kroes is understood to have led a discussion on  the ‘appropriate level of ambition’  for the draft Telecoms Regulation. This suggests that there is either uncetainty in Mrs Kroes DG Connect, or that there are more bullish demands coming from other DGs.   Mrs Kroes  suggested that the 2009 Package is merely  the legal ‘backdrop’ for the new law, only there to ‘preserve a desgree of predictability for investors’, indicating that it has been her  intention  to alter the legal structures that govern telecoms in Europe. 

The broad aim of the new Telecoms Regulation is to create a single market for telecoms services. In principle, this would mean that services could be offered by any operator across the whole of Europe, with national boundaries and jurisidictional differences  losing their significance. But it seems that Mrs Kroes has been unsure how far she could go  in eradicating national regulatory and tariff differences.

Certainly, the leaked draft of the Regulation as seen already indicates   sweeping changes.    It is arguable that  it is not intended merely as an amendment or update of the 2009 Telecoms Package, but to bring in something new. What is not clear is how far the changes could go.

 We should also  look carefully at what DG Comp would mean by lack of ambition.

 Seeping through the sub-text of the Telecoms Regulation is the matter of industrial  consolidation,  which appears to be one the policy aims. That  should concern DG Comp,  since consolidation implies a reduction in competition. and  changes in the market structure that threatens the competitive framework.  'Ambition' could suggest that the Commission wants to promote  greater consolidation.

From DG Comp's viewpoint, support for market consolidation would  seem to be a little puzzling.  On the other hand, it could explain why DG Comp  wants a strong pan-european regulator that could maintain some level of competition.

Consolidation of the Telecoms Market  is unlikely to be good news for Internet users. It stands to  create a pan-European oligopoly of Internet providers, increasing their power over the user community and what we can and cannot do on the networks. The provisions in the Regulation will ultimately determine which of these companies lives and dies.

 A statement from Mrs Kroes’ press office issued  in response to the FT article says  that there was ‘strong support’ for Mrs Kroes from the other Commissioners. But other sources suggest only that there was broad  support for the guidelines of the new Regulation, which may engender a slightly different interpretation. Support for the guidelines is not the same as strong support for all the measures. So it is really uncertain at this stage which way the Commission will swing. Will it go the whole way to disbanding or dis-empowering national regulators and empowering the multi-national operators? Or will it hold back and proceed more cautiously, retaining some discretion for member states? Is Mrs Kroes being disingenuous when she claims to be  "fighting like hell for a EU you can believe in"?

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To read the history of the 2009 Telecoms Package, see my book The Copyright Enforcement Enigma - Internet Politics and the Telecoms Package (Palgrave Macmillan 2012).

There is more analysis of the new Telecoms Regulation from PolicyTracker  on the spectrum issues,   and from  Out-Law.com on the DG Comp controversy.

The leaked draft of the Regulation laying down measures to complete the European single market for electronic communications and to achieve a Connected Continent  can be downloaded from European Digital Rights (EDRi)

If you are working on analysis of the Telecoms Regulation, please get in touch or send me links. If anyone at DG Connect or DG Comp would like to clarify 'ambition' , please get in touch too.

This is an original article from Iptegrity.com and reflects research that I have carried out. If you refer to it or to its content, please cite my name as the author, and provide a link back to iptegrity.com. Media and Academics – please cite as Monica Horten, 2013,  EU rifts over how far to push new telecoms rules - DG Comp attacks Kroes, 17 August  2013. Commercial users - please contact me.

 

 

 

 

 

 

The Copyright Enforcement Enigma tells the story of the 2009 Telecoms Package and how the copyright industries tried to hijack it.

'accurate and absorbing account of the story of the Telecoms Package' -Journal of International Commercial Law and Technology

'...a must read for those interested in knowing in depth about copyright enforcement and Internet.' -Journal of Intellectual Property Rights.  

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Iptegrity.com is the website of Dr Monica Horten, European expert on Internet policy and Visiting Fellow at the London School of Economics & Political Science. She is an independent expert on the Council of Europe Committee on Cross-border flow of Internet traffic and Internet freedom (MSI-INT). She was shortlisted for The Guardian Open Internet Poll 2012. Iptegrity  offers expert insights into Internet policy. Iptegrity has a core readership in the Brussels policy community, and has been cited in the media. Please acknowledge Iptegrity when you cite or link.  For more, see IP politics with integrity

Reads like a legal thriller!


The Copyright Enforcement Enigma - Internet Politics and the ‘Telecoms Package’

by Monica Horten

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